Last time, I talked about how the new “rights” form the police are using in DUI and Refusal cases affects the average DUI defendant who opted to take the breathalyzer. Today, I’ll talk about how the new penalties warnings affect a person charged with a chemical test refusal.

When the state charges a person with a refusal, in addition to the other elements of the offense, the state has to prove that the person was warned of the penalties if they choose not to take the test. If the police don’t warn the person of the penalties and the person still refuses, then the law says that the court can’t impose the penalties the person wasn’t warned about.

For example, and this actually happened in the lead case on the topic (Levesque v. Rhode Island Dept. of Transp., 626 A. 2d 1286 – RI: Supreme Court 1993), if a person is warned of a driver’s license suspension but not the associated registration suspension, then the court is obligated to impose only the license suspension.

But what happens if, as many criminal defense lawyers are arguing, the entire warning is defective? That is what the courts are trying to figure out right now. Unlike a DUI case, the failure to warn in a refusal case doesn’t create a constitutional problem for the state. But it does create the possibility that the whole refusal case can’t be proved in court because the warning is completely defective. The rights form that the police are using today does not adequately explain the low end of the penalty range. It really only addresses the top end, or most severe, penalties.

The state is trying to argue in each of these cases that the courts should just follow the law laid out in Levesque and impose only the suspensions that are actually in the warning. However, the defense bar is arguing that because the most lenient form of suspension is not included in the current form, the whole case must be tossed.